Operation Streamline

This was originally posted on CAMBIO.

To understand Operation Streamline, it helps to visit the Judge Roy Bean Saloon & Museum, 60 miles north of Del Rio. This corner of Texas needed a local justice of the peace in the 1880s and Roy Bean took the job. Bean deemed his saloon a courthouse and dispensed what the state's tourism department now describes as "his own brand of justice…with strange, but expedient decisions."

Efficiency was king. Judge Bean had a saloon to run, after all. When he needed a jury, he called one from among his customers. Whatever fines he imposed, he pocketed.

Once, when an Irishman killed a Chinese railroad worker and was sent to Judge Bean to be tried for manslaughter, a mob of 200 white people demanded the Irishman's immediate release. Judge Bean set the Irishman free, holding that while homicide was the killing of a human being, there was no law against killing a Chinaman.

But that was a long time ago, and thank goodness that sort of thing doesn't happen anymore.

The area where Judge Bean set up his saloon-courtroom is now anchored by Del Rio and its sister city Ciudad Acuña. The area got hot as a crossing point around 2004, and the Border Patrol ran out of bed space to hold people coming from points further south than Mexico (those from Mexico were usually returned back across the border the same day). The agency came up with an idea for a quick fix: ask the US attorney to criminally prosecute people, so they can be shipped off to the area's federal prison facilities. With new for-profit prisons popping up all over Texas, there were plenty of available beds in these contract facilities.

Del Rio Sector's Border Patrol chief approached the US attorney, who balked at the idea of shifting the problem of unauthorized border crossings into criminal court. Undeterred, the Border Patrol chief went up his chain of command to DHS Secretary Michael Chertoff. This was in December 2005, and Chertoff was more than happy to sign off on anything that wasn't about Hurricane Katrina. Operation Streamline – which more accurately would have been called Operation Borrow Some Jail Cells for Awhile – was intended to last 90 days.

From the start, Operation Streamline was infused with the spirit of Judge Roy Bean. Expediency was the top priority. Rather than a single defendant sitting with his federal public defender, facing off against the U.S. attorney in front of the federal judge, Operation Streamline filled up the courtroom with 80 people at a time and criminally prosecuted them en masse.

Streamline took hold in the Del Rio sector and spread like a zombie attack. The Yuma Sector in Arizona got Streamline a year after Del Rio. It then spread to the Laredo Sector, the Tucson Sector, the El Paso Sector, and the Rio Grande Sector in south Texas. In each of these places, anywhere from 20% to 80% of the people apprehended by the Border Patrol are now inserted into the federal criminal justice system rather than handled in the traditional way, through voluntary departures and the civil immigration system.

It's an enormous number of cases – immigration prosecutions now make up a third of the federal criminal docket. Where federal courts used to be reserved for the most serious criminal cases, it's now being used to process the most trivial immigration violations. It's as if a bunch of kazoo players stormed Lincoln Center and started tooting their kazoos alongside the New York Philharmonic.

I went to watch the Streamline proceedings in Tucson, and it's as bad as described by Dan Rather, NPR, retired U.S. Magistrate Judge James Stiven, Rinku Sen, and the Berkeley's Warren Institute. People were called up ten at a time to give their guilty pleas, then shuffled off to serve their 30-180 day prison sentences. The US attorney barely looked up throughout the proceedings; he just moved ten file folders from one side of his table to the other with each batch of pleas. (The one indication that this was still federal court: they were very nice file folders.)

The judge processed 74 criminal convictions in two hours. Judge Roy Bean would have been proud. All that was missing was the congratulatory round of whisky.

Proponents of Operation Streamline point to the dramatic drop in apprehensions along the border and credit the deterrence effect of a criminal conviction. But numerous studies, including this one by the buttoned up analysts at the Federal Reserve Bank of Dallas, have established that the deterrence effect is quite small – nearly the entirety of the drop in apprehensions is due to the bad economy.

What Operation Streamline has done is make money for the for-profit prisons, by providing a steady stream of new prisoners. It's also driven up the price of coyotes. A California Law Review article reports that the federal defender in Las Cruces calls Streamline a "coyote employment bill," with nearly everyone crossing the border now paying an average of $2500 to professionals who claim to have secured clear routes.

One federal judge, at least, is having second thoughts about his participation in this farce. Judge Robert Brack, presiding over court in Las Cruces, recently told the Wall Street Journal he regrets his role in sentencing thousands of people a year on junk criminal charges. "Every day I see people who would never have been considered as criminal defendants two years ago," he said.

These men and women, many of them convicted for attempting to return to their families in the United States, have now been labeled as "criminal aliens." This excludes them from any of the legalization proposals being considered by Congress. To correct the injustice, Judge Brack wants Congress to create a "Judge Brack exception": anyone separated from their family after being sentenced by him should be allowed back in and legalized.

Immigration reform should certainly include people sentenced under Operation Streamline, but DHS doesn't need to wait on Congress to end this experiment. Someday the tourist brochure for the Del Rio federal court will describe Operation Streamline as "a peculiar brand of justice…with harmful but expedient decisions." Visitors will chuckle at the time when federal judges lost their minds and turned their courtrooms over to the Border Patrol.

• Grassroots Leadership's Operation Streamline: Costs and Consequences give a solid fiscal analysis of Operation Streamline and its enrichment of for-profit prison companies.
• An good history of Operation Streamline is included in Joanna Jacobbi Lydgate's Assembly-Line Justice: A Review of Operation Streamline.

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